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tv   Book Discussion on The Court and the World  CSPAN  October 14, 2015 4:30am-5:37am EDT

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so ii answered. a piece of it is confidential, and i cannot tell you, and it is not in the book. if i tell you, i have to kill you. it's that important. the pieces that i can can tell you is that she is very domineering. she did not cooperate with a great journalist who wrote the big, comprehensive biography of sandra day o'connor. she wantedshe wanted to tell her own story, which she told brilliantly in the book about the lazy v. herev. here is the sad thing, she will never get to tell that story. i wrote the story. she could have had some influence, but she wouldn't because that is a part i could share with you it's, and she has a set pattern
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that she does. if you interview her you always get the same story. >> i also heard justice ginsburg speak several years ago after justice so the mayor had been appointed to the court and talks about how it was just her and sandra day o'connor many of the male lawyers would confuse them. they look nothing alike. but they said once they got a 3rd woman on the court is stopped. it is a wonderful story. and also, is she particularly close to so the mayor or kagan? >> she and kagan have been friends for decades. it's so, yes. and she credits ginsburg the changing the world so that she can take a ride, which she did. there are stories about so
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the mayor ruth bader ginsburg wrote a letter to stephen rice. as a letters. interviewing stephen rice. if i have to answer that question i better check with one of the letters i got. i'm like, letters? in her letter's, one of the 200+ i have in my computer, some of which i shared with you in this book, she said she was very glad for her company's. ii think she is glad for company command i am very glad for sonia sotomayor or to be on that. i would have tried to write about her that she retired to jersey with that.
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[applause] >> ladies and gentlemen, welcome to the national constitution center. the only institution in america chartered by congress to disseminate information on a nonpartisan basis, and this really is a remarkable day because we have a tremendous honora tremendous honor of the visit by the supreme court justice stephen breyer. [applause] among his many distinctions, many books that he has written including one that we will talk about today, member of the national constitution center's scholarly advisory board,
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central to this creation to bring together people of different perspectives to debate the constitution, to learn about it, celebrated. we are thrilled to announce a new interactive constitution that we believe will transform constitutional education in america. withamerica. with the help of the federalist society and the american constitution society's we have commissioned the top scholar's a write about every clause of the constitution describing what they agree and disagree about. this morning the president of the college board and i announced that the college board will make this the center of the new ap history and government exam, and we want to get it to every student. but that is not all. the interactive constitution
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has the international component which is what i want to begin with to discuss because he has written a superb an important new book arguing that american courts should pay more attention to the decisions of their counterparts abroad which is just a great way to begin our discussion by clicking on this part of the constitution which allows you to click on the globe. anyone can do this free online's and pick any right and see how constitutions around the world protected. i chose justice breyer, the mn -- american 4th amendment which had a very direct influence on japan when general macarthur drafted the japanese constitution is' by contrast
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if you look at the constitution you see it is a creepy prohibition. this so this is just one of the many things that i hope inspires students and citizens to engage us. how can citizens use this tool timeto learn about the importance and relevance of international constitutionalism? >> first, i would like to thank you for inviting me here. we were here at the inauguration's to see the students walking around and looking at this stuff, you seem to enjoy it which is just great.
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you have done a fabulous job >> you want to know about this. this is great. the 1st thing we can do is plan dinner. thank you for coming. this, of course, i heard an historical story. well, you might have been
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governor of new jersey but he signed the constitution and was a very, very good politician for some reason or other movie the 16th was16th was told that was a brilliant politician asking for advice. 's i'm going to advise you to do that which is the hardest thing for any human being to do, do nothing's. don't appoint your reactionaries friends. do nothing. soon there will be terrible inflation and everyone will look furious for someone to
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blame. 's then no one will think of you. so if ii had known about this i could have done nothing. >> not true at all. >> but this is fabulous. we will circulate this through the us command i think students will be interested and learn something which is the objective here and in sunny land, and berg, all of these foundations to pass on to the next generation the values that we have in fact inherited and try to maintain democracy, human rights, commerce, and it
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must be passed on. >> let's talk about this great book. you acknowledge that it is contested. and i want to give a sense of your argument that the court is already doing this. it's scores of opinion that do not get the same attention as the domestic ones. why do we not begin with this case that is so important involving torture and is at the core of the relevance of international law and american life and
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tell us about that case and your courts more recent disagreement about how broadly to distance -- misconstrue it. >> in so far as we do with the argument that people make. it just says this is what we do 's. look at the nature of how our docket has changed during the 21 years i have been there is. more and more cases come up that require us to no quite a lot about what happens beyond our shores command i have categorized and explained why and so forth. why you bring up that case, a woman not in the supreme court'scourt's from paraguay who came to new york sometime in the 1970s and there in new york she discovers the man from paraguay who in paraguay had worked for the dictator and tortured her brother to death. she also found a statute
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that have been passed almost 200 years before, the alien tort statute which have been passed probably in part to help victims of pirates and said, she said, that i, that i can bring a claim for damages in federal court, and she did, and she won and she went back saying, i came to the united states to look that man in the eye and came away with so much more. as a result of that, of many cases brought, many, i mean, all kinds of questions raised, he stressed her, the dictator paraguay is not and was not the only human rights abuser in the world. the marcos' victims brought cases in hawaii, many cases, and it false of the federal court to interpret the statute, and it is not as easy as you might think.
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you are today's pirates. moreover, what happens when south africa, asafrica, as they did, filed a brief in federal court saying the problem's of dealing with the victims of apartheid and the perpetrators is a problem that we are dealing with through truth and reconciliation commission, and we do not want american federal judges interfering. when? when do we interfere and when do we not command how do we get the statute to fit within a network of statutes that existsexist throughout the world so that we do not work at cross purposes canceling each other and cause more trouble than we are helping 's. do we want
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an interpretation that will in fact allow belgium to begin to bring proceedings against'sagainst's -- this is used as an example, henry kissinger. probably not. you get the nature of the problem. universality, noninterference, you cannot interpret the statute as we have tried to do on two or three occasions without looking into the questions of where does this fit with the international criminal court. that is just a human rights area, one example. there are others. this is all these things are
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international. we here the word interdependence, globalization, shrinking world, and they range from the total cliché to the completely incomprehensible abstraction,, and i would like to make these things very can create so that people can see what it means not just for the court or the judges or lawyers, but the average american word means quite a lot. commerce, we have in front of us, the privacy problem of the nsa looking at everyone's whatever. this. >> one of the cases in front of us is that of a student from thailand who is studying at cornell and
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discovers that his textbooks , the very same textbooks are half the price and thailand. so you. so he rise to his parents and says please send me a few copies and they did this , and he begins to sell them. this upset the publisher who brought a lawsuit and then the question in front of us was to try to interpret a technical set of words in act's which seem to apply to sales abroad. if you go into a shop and buy a book, after you buy it you can do what you want with it, the statute was not quite the same's. we have towe have to interpret that. and suddenly we see in front of us in the court briefs filed by lawyers, britain, and probably japan's,
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business groups, dozens and dozens, libraries, not just american ones. why are they all filing briefs on this technical question. well, it became very clear that copyright today's not simply a matter of books but by an automobile, go to the shop. it has software of all kinds within it which is often copyrighted. should it make a difference if you buy the car from an automobile dealer who is selling your car made in detroit when you want to resell it, does it make a difference if it was made in tokyo? or, go into any shop that you want and look at the labels, the labels are quite often copyrighted and may be maybe the shape of the product in the bottle is shot -- copyrighted, too.
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's the.is we are told that in this case these involved $3 trillion' worth of international commerce. my goodness. and to work that question out soundly, we all thought we have to know something of the treaties, the practices of copyright owners and buyers in foreign countries, whether they publishers are trying to provide markets, all kinds of things and those lawyers are in there trying to inform us. at is the kind of problem. when you have that kind of case are can repeated with antitrust i can show you
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securities cases, and if i try to generalize i would say that the general practice of the court now on like maybe 20 years ago is to take a technical legal term called comedy which is something you are supposed to be good. beyond that is complicated. but using that word to say the antitrust authority in europe the united states in the united states. 's try to interpret the american law's breeze for
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transit. as well as several other countries will be told that we have to understand it. 's we will not understand it , but that is the nature allies number of commercial cases. this. >> quite technical. as. >> you have some assistance in some of the research is wanted to give a shout out. >> do i not have a day job?
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the answer really is only 274's textual pages. but they must be accurate. there is quite a lot of research's. some of it, responding to cases that were written, but i really want to thank yell because yale university pay for one of my former, from philadelphia. this still, i did something.
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not so much the cases we have talked about you yourself cited foreign decisions in an important dissent in a death penalty case. this. >> much of the political conference of controversy goes out two or three cases.
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this take this for what it is worth. normally involving the words cruel and unusual punishment. this does that mean unusual respect to the world or in respect to the united states? 's so far no one has found what they meant. theymeant. they are argument is about that. when i had other arguments' suggested there were problems with it, help convince some people, but that is what people were thinking about's who are opposed. 's i was actually on the
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panel where there was a congressman who is worried about this and he said's, talk about why we should not do it. more and more countries throughout the world have documents like our constitution, similar objectives protecting human rights and democracy. a judge has a job rather like mine and problems are more and more similar. he said fine. read it. just don't cite it in your opinion.
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it's''s that might help them a little bit. a well established court and we see we are doing something important and are recognized as doing it. that will help. write them a letter. i am getting nowhere with this. what i am doing in respect to that argument is recognizing what it is that drives us. in my opinion it is a fear or concern that if we refer
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to much or too often to cases decided in courts outside of our own country we will begin to accept or water down's our own basically american values. in part ii am talking about security problems, liberty problems, balancing security needs' against basic civil liberties' because ithis because i want to say or i want the message to come through that at least in my opinion in this world the way to preserve our basic the american values is to engage with what is happening elsewhere, to find out about it, understand what is going on outside our
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borders, take it into account that we are relevant,relevant, learn from it and reject it where you think it is not relevant or not the right way but above all to participate because if we do not it is not as if it will stop going on. it will continue and people will deal with problems that are international in scope's they will, and our voice will not be there. 's the better thing to do is participate, take it into account and i hope that they will then be convinced that that is the better path to do the very thing the critics above all want done. it's. [inaudible conversations]
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and that is a highly specific details argument which is a tiny part of what i'm talking about. >> the fear that invoking international law could undermine values' insisting
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on the necessity of generally deferring, what is the response of the critics to impose the european conception of honor and dignity's with the usurpation of democratic values. >> very few would say let's go look and see what they decide in the strasburg court's. thatcourt's. that is not how it works. it is more likely that a case will come up of one interesting and important part of the constitutional decision-making in our court whatwhat happens in war time or times of security, emergency when in fact the
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government a woodrow wilson or fdr and the congress at that time say that we want because of the security need to do away with what would ordinarily be civil liberties. lincoln secretary of state called in the us ambassador. it's a fresh it twice in the same with anyone in ohio. is the queen of england have such power? go up to world war ii when they were put into camps, prison camps away from their homes on the west coast for no good reason at all, pretty well acknowledged by anybody and by the time --
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by the time the case came to the supreme court no one thought there was a security need, yet the court upheld it. whoit. who wrote those a opinions? the people who were later the liberals. but they are looking back to his sister. 's people pointed out the romans did not have campus -- cans. and that prevailed. look at where it led us. as justice jackson and that
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court's no 's,'s, and the president cannot seize the steel mills during the korean war's even though he wants to and it is evidenced us that he needs to strike. the court said no. then we go to the guantánamo cases, and in the guantánamo cases, and each of them a detainee, bin laden's chauffeur's sous the president of the united states', and each of those
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they were trying to get into court, the detainee one and the government lost. if i wanted to summarize the view of the court's i would take what justice o'connor wrote which i joined where she said the constitution does not write the president a blank check to set aside civil liberties. all of us would conceive the constitution gives tremendous authority. but we also think that we know not much about that and have a special duty under the constitution to protect basic human liberty listed in the 1st ten amendments. what happens when they conflict? how do we resolve it? well, no blank checks which
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is a great statement and tell you then have theit's have the thought which will occur three seconds after a make the statement. if it is no blake chang -- blank check, what kindcheck, what kind of check is it? the opinions do not quite say of course because we do not know. we will have to see what happens. certainly you would say that they are likely to be that we are seeming to face security threats or terrorist threats that do not go away and are of a special nature and may go on for a long time and may require what and how justified? lawyers will help or say why not do it this way's which is less restrictive. and then we are to evaluate. my only point here, if you
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want sound answers from the court, and i think that you do, of course we will have to look abroad, but not necessarily for the answer but to understand the nature of the security threat which may help on some occasions to know what other countries are doing even if to reject it, may help to learn how israel handles this kind of thing or how the births are trying to handle it or how the germans or someone else's. theythey are facing similar problems and may prove instructive in the way they respond, but in any event how do we do it without knowing the nature of the security problems.
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you will see the nature of the problem. commerce 's,'s, ortega, that kind of thing i just mentioned that govern a large number of marriages and divorces. 's and on the other side are groups particularly concerned about abduction of children. what are we deciding? they know, federal judges among all the judges no much
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less about this kind of thing than virtually any state court judge specializing in domestic, one of the hardest areas in the law. 's we are our children or grandchildren are more and more likely to marry someone from a different country and live for a time abroad. that is not uncommon. there we are. 's of course we will look abroad. you see what i am trying to say.
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i understandi understand your motivation. 's and even if it does, underlying motivation is maintaining american values, rule of law, etc. >> we have a mutual hero, justice louis brandeis. you have very kindly read my ww bd, what would brandeis do's. he cited international outlaws. tell us about that and what you think he would have said >> my attitude toward that is judge broncos who used to teach at the harvard law school.
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and he used to tell us in class when i want to know what the common man thinks, i ask myself what i think, and i am right every time. >> he would agree with you. say a little more. you gave a beautiful speech about how he has influenced you. >> in part because he did strongly believe that he wanted to look into the facts and circumstances of the particular case and thought that the values' would grow out of an understanding of what was at stake. he would think that it is important to look into the details'. and he felt the sum of the federal state government. others -- of course state
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government is important. the same thing to nations trying to cooperate. he felt very much as homes did in respect to the constitution congress has a great deal of leeway and should in a democracy. the legislature should, but, but they're comes a point, and not further than that, and now we can go through all kinds of reasoning to discuss what that is, but no, not that's, and he explained it eloquently in respect to free speech and other important values. my own experience is that that did not sound articulate, but it does ring true. how do you know?
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but i think he had a way of approaching it that i find absolutely admirable. 's. >> you also site brandeis as one of the judges has engaged and proportionality analysis. >> is something that europeans say that they engage in a lot this. first amendment areas.
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does it justify the restriction? 's does the answer differ? and that kind of thing used to be called balance. it is now a particularly european notion. judges hate balancing. they hate it. this over they're and this over here and the other thing over they're, and no one believes that the judge is giving awaygetting away from the subjective part of his brain, though he is trying to's. judges hate balancing but there are cases where it is
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pretty hard to see what else there is to do when in fact this vermont passes a law which says we don't want drugstores to give to drug companies the names and addresses of the doctors using a particular drug well, my colleagues, the majority godfather did. this is in an area where free speech says not run rampant's.
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fancy that kind of case you had to look into the details , balancing. you can learn something from their cases in terms of the way you go about looking at particular factors and it helps me see that i have not missed something and forces me to write a justification as to why i came out against the first amendment and the other way's in a case where congress had passed a statute. first amendment interest,
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great. what is the harm? 's this is a more transparent approach's. this they're is communication's. that is not adopting a notion's but is looking to people who have used the other enlightenment.
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>> the concern about concerned about balancing is the same as the implication of foreign opinion's. how do you reconcile this crucial tension's'. >> that is a good question. you are afraid it unleashes the subjective nature of the judge and he or she will do whatever she likes her thinks is good set of what the law requires, but i do not like your approach because i fear that it is too rigid. the framers thought in general terms, so of course
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i will look back to see what values are trying to protect , but i do not think that i will look around and see what it did or did not think at that time that a covered flogging or did not cover flocking. ..
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>>
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>> balancing is a ball. very transparent. a good opinion is an opinion that reveals the factors that actually moose but that is the idea that is a you try for. i said i think that approach that doesn't just go back to those conditions the times the flavors were alive but the argument to tenures - - continues. >> we have this wonderful liberty exhibit downstairs the you have a copy of jefferson davis letter calling for separation between church and state
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would you compare the metaphor to the french there should but what can that french and russian teach us to interpret the establishment clause? >> that is an issue i did not deal with. is of the ellipse your i am not an expert but the french probably would want more separation of church and state they don't have pairs at the opening of the national assembly of the of their hand they use subsidize religious education. there are similarities in their differences. i will wait until i know more about it.
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[laughter] >> what have you learned most from for a judge's? >> there is a lot if you talk to judges reduce spend some time they will cover the upper or we will go over there occasionally with the e.u. they're very interested in problems better similar to our commerce clause problem. with the idea that works pretty well with protectionist legislation. we had an exchange with the english judges said they developed where they see a need and israel does this say where there is said the four suspected terrorist to
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be put under conditions they cannot use certain cell phones are they have to be controlled and judges have to decide that is worthwhile and it may require confidential information. and to work out a complex system of lawyers were one has of a confidential information could say some things back to ask questions and it is pretty complicated there is a they hundred page report about a but there was an interesting discussion. i am not advocating that one thing required me to do was to go to the of fisa it took about a week there only to retreat i had them cited the
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opinion i gave the in english it is not classified [laughter] it is interesting but when the president of ghana support was in my office trying to figure out how to read figure this out? why don't the people of the united states listen? good question. i tell her it is the process taking 200 years but there was a time and to oklahoma
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were the descendants live to this day. i love that story the governor that i can remember standing there in the face of the order this is after brown v board of education. no more segregation. 1955 what has changed? said judge says the governor says no you may have a court order but i have the state police.
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eisenhower has to make that decision because they went in and said to the president i will integrate said he told the press the opposite. eisenhower got pretty a agreed that he had to figure out what to do and governor of south carolina that he said to eisenhower if you send the troops be prepared for a second reconstruction and. the best that will happen is that they will close the schools and nobody will be educated.
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ended within to read three days no 101st airborne was called in. he purposely called the 101st. they were the people who would they did permit the hon up on the church steeples. so that was after the battle of the oldest and he put 1,000 members into airplanes and flew them into little rock they escorted the black children into the white school. to say within one year that all the schools closed. no more integration.
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of course, disintegrate do that now the day after they closed all the schools. not a happy story at all. but by then to keep the schools closed in they had to reopen eventually bin type of martin luther king. and the freedom riders and those went into the south to try to do what they could to see the order was forced that is the message of what to get across you say you want to rule of what your country? please. don't just talk to judges and lawyers. they already agree with you.
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conjured to popular belief 350 million americans who are not judges and lawyers they are the ones you have to convince. but judges who were human beings of the importance and may well be wrong. ed is it important message so where i was in dissent the most remarkable thing of that decision despite the fact is of great importance i thought it was wrong.
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there were no riots or stones thrown. and then to say to the college audience to say too bad. really? to just see what happens that resolve a major dispute that way. and those that are not specialized that it is the interest some cases that our important and what they don't like. than they have little ups and downs than that have a
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rule of law. i do my bit said to be up to the state department to talk to a class of law students and professors it did take some time. and if that means fundamentalist she is worried they will write a constitution to permit you from going to law school and she said exactly. and other women came up that is what they're worried about. i cannot stop them for that purpose i can encourage them.
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i certainly hope you do your generation believe that to educate the women throughout the world they want their children educated in their own careers. and those of the organization so they could have a career that they lack. am not saying we can change the world as judges but in fact, we can have conversations to be in the same boat to have that moment or bb to us that it
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is one part of the changing world. the world. it has nothing to do with individuals. our opportunities and lives are are not a function of individuals or one philosophy or another but a world that is changing and has changed and that is the point i want to get across because those are the challenges we have to deal with. >> that is inspiring on which to end that all citizens have an obligation to educate themselves by listening to each other from a diversion point of view to
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bring people together to respect the argument on both sides that is what you're trying to do in this book and i think of your many contributions. the fact is you're a teacher at harvard law school because they called in to have some final homework read his decision. pick a decision. if you can read the majority opinion. justice beyer for all you have done to educate americans about the
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constitution, thank you. [applause] [inaudible conversations]

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